On appeal from Superior Court of New Jersey, Law Division Bergen County, Docket Nos. L-5999-02, L-6000-02, L-11-03.
Before Judges Wefing, Collester and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal we are asked to determine whether certified audited financial reports of affiliates of Bergen Regional Medical Center, L.P. (Bergen Regional), which were prepared at the behest of the Bergen County Improvement Authority (BCIA) and kept on file at its offices pursuant to the provisions of a lease agreement between BCIA and Bergen Regional, are deemed public documents under the common law right of access.
This issue is presented to us in the context of an appeal taken from an order entered by the Law Division in three consolidated actions arising out of requests made by reporter Shannon D. Harrington of The Record newspaper and by representatives of the Health Professionals and Allied Employees Union, Local 5091 (Union), for copies of the annual audited financial statements of Bergen Regional and its affiliated entities. Bergen Regional had provided these records to BCIA pursuant to the Lease and Operating Agreement of Bergen Regional Medical Center, formerly known as Bergen Pines County Hospital.
BCIA and Bergen Regional sought a judicial declaration as to whether the release of these documents was required under either the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, our State's common law right of access, or both. The Law Division held that these documents were proprietary financial information and thus exempt from disclosure under N.J.S.A. 47:1A-1.1, which excludes from the definition of a government record"trade secrets and proprietary commercial or financial information obtained from any source." This ruling has not been appealed.
The trial court held, however, that BCIA was required to release these documents under the common law right of access. The court, applying the legal principles articulated by the Supreme Court in Keddie v. Rutgers, 148 N.J. 36 (1997), ordered the records released. The court held that the affiliates' financial reports were"public records" because: (1) Bergen Regional was contractually obligated to prepare and file these documents with BCIA; (2) both The Record and the Union established a cognizable interest in the release of the documents; and (3) the release of the documents was not adverse to the public interest.
Bergen Regional, on behalf of itself and its affiliates, now appeals, arguing that the trial court erred in so holding. It urges us to reverse the court's ruling by harmonizing the common law definition of"public record" with the OPRA definition of"government record," thereby exempting these documents from public disclosure.
We reject these arguments and affirm. We now hold that the common law definition of"public record" is broader than the statutory definition of"government record" contained in N.J.S.A. 47:1A-1.1. Although the public policy expressed in OPRA is entitled to judicial consideration and respect, a court reviewing a citizen's petition for access under the common law must apply the legal principles articulated in judicial decisions to the facts of the case, in order to determine whether access is legally warranted.
In the absence of clear common law direction on the subject, a court engaged in this process may look to OPRA provisions as expressions of public policy on the question of public access to information. However, if disclosure of the information is warranted under the common law, OPRA provisions cannot be invoked to defeat a citizen's right of access.
The parties stipulated to the facts at the trial level. An analysis of the issues presented here does not require a complete recitation of those stipulated facts. We will thus only include such facts as are necessary to provide context to our decision.
Effective March 15, 1998, BCIA and Bergen Regional,*fn1 a for profit privately owned company, entered into a nineteen-year Lease and Operating Agreement, pursuant to which Bergen Regional assumed responsibility to provide all management, administration, operation and maintenance services for the Bergen County Medical Center (formerly known as Bergen Pines County Hospital or Bergen Pines). The preamble of the Lease and Operating Agreement acknowledged and emphasized that for more than eighty years Bergen Pines had provided a"safety net" of health care services to the residents of Bergen County and its surrounding communities. It was thus the express purpose of the Agreement to enhance this health care safety net by providing quality health care services"in an efficient and cost effective manner."
Bergen Regional Medical Center is this State's largest hospital with 1,185 patient beds. It is comprised of three major divisions of care: Acute Care; Long Term Care; and Behavioral Health Services, which provides psychiatric services to both adults and children. As a public health care institution, the Medical Center has an historic and ongoing mission to provide health care services to the poorest among us.
The Medical Center's public hospital license is held by BCIA. Under the Lease and Operating Agreement, Bergen Regional is responsible for the day-to-day operation of the Medical Center. BCIA and the County of Bergen retain certain"reserve powers" concerning the operation of the Medical Center, as well as responsibility for (1) capital improvements and, in certain limited circumstances, (2) continued support of certain programs and services in the absence of available reimbursements.*fn2
Coupled with BCIA holding the Medical Center's license, this retention of authority by BCIA was expressly intended to satisfy Department of Health and Senior Services' licensing standards, allowing the Medical Center to continue to receive public funding and favorable reimbursement rates from Medicare and Medicaid. According to the parties' factual stipulation number twenty-four:"Such funding and reimbursements have accounted for and will continue to account for a significant portion of the annual revenues earned and retained by [Bergen Regional]." (Emphasis added.) While the term"significant" is not defined in terms of percentage of revenues, we infer from its usage that public funding constitutes a fairly large portion of the Hospital's income stream.*fn3
In addition to these direct financial benefits, Bergen Regional has also sought to exploit its association with this public institution by attempting to obtain indirect pecuniary benefits in the form of an exemption from New Jersey State sales tax. In the case of Bergen County Improvement Auth. v. Bergen Reg'l Med. Ctr., L.P., No. 2048-2001 (Tax 2001), Bergen Regional's counsel argued that, despite being a for-profit company, Bergen Regional, was:
[E]ntitled, as a matter of law, to make use of BCIA's exemption from sales and use taX on purchases made in connection with [its] operation of the Medical Center as the BCIA's agent. As relief, [Bergen Regional] request[ed] an injunction requiring the BCIA to recognize [it] as [BCIA's] agent for the purpose of the sales tax exemption and a declaratory judgment that [Bergen Regional] [is] entitled to the use of the sales taX exemption.*fn4
Section 9.25(c) of the Lease and Operating Agreement requires Bergen Regional to prepare and file in the offices of BCIA audited financial statements with respect to its operations"as well as ...